Samba TV™ Terms of Service

This Terms of Service (“TOS”) sets forth the Terms of Use that govern your use of Free Stream Media Corp’s Samba , Samba TV, Hotlist, Spotlight, Launchpad or Flingo services (“Samba”). By choosing to accept this TOS, you will be able to view content on one or more screens (eg., a TV, a tablet, a mobile device). We may update the terms of this TOS from time to time. You should periodically visit the “TOS” page on Free Stream Media’s website http://samba.tv/terms so you are aware of the terms and conditions that govern your use of Samba

Samba is provided by Free Stream Media Corp (“Us” or “We” or “Samba”), located at 301 Brannan Street, San Francisco, CA 94107. Samba is a home entertainment service (“Service” or “Services”) for viewing and/or interacting with videos, images, artwork and/or other content (“Content”) through a consumer electronics device with Internet connectivity (the “Equipment”). TO USE THIS SERVICE, YOU MUST HAVE HIGH-SPEED INTERNET CONNECTIVITY AND EQUIPMENT ASSOCIATED WITH OR ENABLED BY SAMBA.

DO NOT USE SAMBA IF YOU DO NOT AGREE TO THE TERMS OF USE IN THIS TOS.
YOUR CONTINUING USE OF SAMBA MEANS YOU AGREE TO BE BOUND BY THESE TERMS OF USE.
SAMBA TERMS OF USE
(EFFECTIVE AS OF May 2nd, 2013)
PLEASE READ CAREFULLY

Should you have any questions concerning this Agreement or need technical support, you may contact Samba support by visiting http://www.samba.tv/support

This TOS (this “Agreement”) is a legal agreement between you and Free Stream Media Corp. providing, among other things, the terms and conditions for your use of Samba, including such Applications as may be included with the Equipment or available via our Web site (the “Site”) http://samba.tv a mobile device, or otherwise.

We may from time to time modify these terms of use and will post a copy of the amended Agreement at http://samba.tv/terms. If you do not agree to, or cannot comply with, the Agreement as amended, you must stop using Samba. You will be deemed to have accepted the Agreement as amended if you continue to use any of the Samba Services after any amendments are posted on the Site.

PARENTAL ADVISORY. IF YOU ARE A USER BETWEEN THE AGES OF 13 AND 17, PLEASE REVIEW THESE TERMS OF USE WITH YOUR PARENTS. SAMBA IS NOT DESIGNED FOR USE BY CHILDREN UNDER THE AGE OF 13 AND WE DO NOT INTENTIONALLY COLLECT PERSONAL INFORMATION FROM CHILDREN ON OUR SITE. BECAUSE SAMBA MAY PROVIDE ACCESS TO CONTENT THAT CONTAINS EXPLICIT CONTENT INCLUDING STRONG LANGUAGE OR DEPICTIONS OF VIOLENCE, SEX OR SUBSTANCE ABUSE, PARENTAL DISCRETION IS ADVISED FOR USERS AGES 13 TO 17.

THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. BY USING OR SUBSCRIBING TO SAMBA, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN ORDER FOR YOU TO HAVE ACCESS TO SAMBA, THIS AGREEMENT MUST BE ACCEPTED BY YOU WITHOUT MODIFICATIONS, ADDITIONS, OR DELETIONS. IF YOU DO NOT AGREE TO THE TERMS OF USE CONTAINED IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE SAMBA. YOU MAY BE DENIED ACCESS TO SAMBA, WITH OR WITHOUT PRIOR NOTICE TO YOU, FOR NONCOMPLIANCE WITH ANY PROVISION OF THIS AGREEMENT.

1. AUTHORIZED USERS

1.1 Age Requirement; Authority

In order to use any of the Samba Services, you must be at least 13 years of age. You (“You”) represent that (i) You have read and understood, and that You agree to be bound by, this Agreement, and (ii) You are at least 13 years old. If You do not agree to, or cannot comply with, any of the terms and conditions of this Agreement, please do not check the acceptance box and do not attempt to access or use any Samba Services.

1.2 Registration.

To use Samba, You are required to register and provide certain information, including a member or user name, a password and a valid email address (the “Account Information”). You agree to provide accurate Account Information and to update your Account Information as necessary to keep it accurate. Samba will use your Account Information in accordance with its privacy policy available at www.samba.tv/privacy. By providing Samba your email address, You consent to our using the email address to send You notices, including among other things notices required by law, in lieu of postal mail. You may not opt out of receiving such e-mails. We may also use your email address, or for subscribers to mobile Services, your mobile telephone number, to send you other messages, including information about Samba and special offers. You may opt out of such email by changing your account settings or by sending an email to support@samba.tv. You may opt out of text messages by sending an email to support@samba.tv. You may also opt out of text messages and/or non-Service-related emails by sending mail to the following postal address:

You agree that You will not allow others to use any aspect of your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of your account. You agree to notify us immediately of any unauthorized use of your password and/or account. We will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and You agree to indemnify and hold us harmless, along with our partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.

1.4 Security.

To prevent unauthorized access, to maintain data accuracy, and to ensure the appropriate use of Account Information, We use appropriate physical, technical and administrative procedures to safeguard the information We collect.

We use Secure Sockets Layer (SSL) encryption when collecting or transferring sensitive data such as credit card information. SSL encryption is designed to make the information unreadable by anyone but Us. Credit card numbers are used only for processing payments and are not used for other purposes.

2. LICENSE TO SAMBA

2.1 License Grant.

Samba grants You a limited, non-exclusive, non-transferable license to access and use Samba for personal purposes only. Any violation by You of the license provisions contained in this Section 2.1 may result in the immediate termination of your right to use Samba. Samba reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF SAMBA NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.

2.2 Updates.

Samba may, from time to time, make available Updates to all users of Samba at no cost or subject to additional fees in our sole discretion. “Updates” means any updates, upgrades or error corrections to Samba that We make available generally to users of Samba. Notwithstanding anything else contained in this Agreement, We will have no obligation to continue producing or releasing new versions of Samba or any Updates thereto.

3. CONTENT AND RESTRICTIONS

You understand and agree that Content and any metadata may be licensed by Free Stream Media Corp from content providers (“Content Providers”). All Content is licensed, not sold, transferred or assigned to You, for personal, non-commercial use only via Samba and on Samba-enabled Equipment.

Since the Equipment is manufactured by a third party (e.g., an Internet-capable TV, Blu-Ray disc player, Set Top Box manufacturer, etc.), please consult the user manual or user guide provided by such manufacturer. You will not, and will not allow anyone else to open, tamper with, or reverse engineer, decompile, or disassemble your Equipment (or any software contained within including Samba), or make any modifications, additions, attachments, or alterations to the Equipment (or any software contained within). Additionally, You agree not to, or attempt to, disclose or circumvent any security measures utilized as part of Samba or the Equipment (or software contained within). You understand and acknowledge that Samba and Equipment (or software contained within) incorporate and utilize propriety technologies, materials, and Content that is protected by copyright, patent, trade secret, and other applicable laws, and that any use or disclosure of the Samba TV, Content, or Equipment (or the software within) contrary to these Terms of Use or any copying of the materials and/or Content residing in the Equipment may cause substantial damages to Us or our licensors and may subject you to civil liabilities and/or criminal penalties.

You agree that You will not:

3.1 use Samba to reproduce copyrighted materials for which You do not own the copyrights;

3.2 unless specifically enabled and authorized to do so by a Samba Service, copy, store, edit, change, prepare any derivative work of or alter in any way any Content provided through Samba;

3.3 provide your password to any other person;

3.4 translate, reverse engineer, decompile, disassemble, modify or create derivative works based on Samba or any portion of them;

3.5 circumvent any technology used by Samba or its licensors or partners to protect content accessible via Samba;

3.6 rent, lease or sublicense any of the Samba Services; or

3.7 use Samba in any way that violates the terms of this Agreement.

Without limiting the generality of the foregoing, unless specifically enabled and authorized to do so by a Samba Service, You may not duplicate, reproduce, transfer, record, or create copies of Content or any portion thereof (including without limitation by “burning”, P2P file-sharing, posting, uploading or downloading) onto any physical medium, memory or device, including without limitation, CDs, DVDs, VCDs, portable media devices, computers or other hardware or any other medium now owned or hereinafter devised. You may not attempt to circumvent, avoid, bypass, remove, deactivate, impair or otherwise defeat any encryption, rights signaling or copy protection technology in which the Content is wrapped or otherwise associated. You may not decompile, copy, reproduce, reverse engineer, disassemble or otherwise reduce the computer file in which the Content is stored to a human-readable form. Any unauthorized copying or other activities that infringe upon the intellectual property rights of owners of the Content are prohibited, and You expressly agree to the automatic termination of Samba if you engage in any infringing activities. Upon any such termination, Content may be deleted from your Equipment.

4. COPYRIGHTS and THE DIGITAL MILLENNIUM COPYRIGHT ACT

As between You and Samba, you acknowledge that Samba owns or has a license to all title and copyrights in and to the Samba Services we have created. All title and intellectual property rights in and to the Content in Samba is the property of the respective Content owner(s) or Content Provider and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties. No right, title or interest in Content is transferred to You.

If You send us any submissions (e.g., emails, letters, text messages, postings to chat rooms, boards, or contests), feedback, creative suggestions, ideas, notes, drawings, concepts, or other information, they will be deemed to be our property and we will not be liable for any use or disclosure of such submissions. Without limitation of the foregoing, we shall exclusively own all now-known or hereafter existing rights to the submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the submissions. The content of any submissions must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise injurious to third parties or objectionable, and may not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of the content. We reserve the right (but not the obligation) to remove or edit such content, but we do not regularly review posted content.

If you are a copyright owner or an agent thereof and believe that any Content, user submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

Identification of the copyrighted work claimed to have been infringed;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;

Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;

statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and

statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our designated Copyright Agent to receive notifications of claimed infringement is:
Free Stream Media Corp. Attn: Copyright Agent, 301 Brannan Street, San Francisco, CA 94107; email to: compliance@freestreammedia.com. Only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Free Stream Media Corp Attn: Customer Care, 301 Brannan Street, San Francisco, CA 94107. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

If you believe that Content or a submission of yours that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content or submission, you may send a counter-notice containing the following information to the Copyright Agent:

Your physical or electronic signature;

Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and

Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in San Francisco County, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that the removed content may be replaced or no longer disabled in 10 business days.

Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

5. SAMBA TRADEMARKS AND THIRD-PARTY TRADEMARKS

The following are registered trademarks or trademarks of Samba: Samba™, and its design logo, as well as certain other Samba Trademarks, service marks, graphics, and logos (collectively, the “Samba Trademarks”) used in connection with Samba. Samba may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to Samba Trademarks or the trademarks of any third party.

6. SECURITY

Samba uses technology to protect the digital information provided by Samba from unauthorized use. Your use of Samba may be limited by such technology. You acknowledge that, from time to time, Samba may modify or discontinue using such technology. Security modifications made by Samba may from time to time include required updates to Samba. IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.

7. PRIVACY POLICY

Samba cares about your privacy. It is important that You read and understand the terms of Samba’s current Privacy Policy located at http://samba.tv/privacy As set forth more fully therein, Samba may cooperate with and disclose information (including your Account Information) to any authority, government official or third-party, without giving any notice to You, in connection with any investigation, proceeding or claim arising from an asserted illegal action or infringement due to your use of Samba.

8. AGREEMENT TO PAY

If You elect to purchase certain Samba Services, You agree to pay all charges associated with such purchase. All such charges (including any taxes, as applicable) will be charged on your credit card. If You purchase any Samba Services, You will maintain valid credit card information in your Account Information.

9. TERM

This Agreement will remain effective until terminated by You or terminated by Us; provided that Sections 3 – 5 and 9 – 13 will survive termination and continue in effect.

10. DISCLAIMERS

10.1

SAMBA (INCLUDING ANY SOFTWARE CONTAINED THEREIN) AND ANY UPGRADES OR PLUG-INS AND ANY CONTENT ARE LICENSED TO YOU “AS IS.” ANY USE OF SAMBA WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAMBA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SAMBA MAKES NO REPRESENTATIONS OR GUARANTEES THAT SAMBA WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND SAMBA DISCLAIMS ANY LIABILITY RELATING THERETO.

10.2

SAMBA MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT USE OR RESULTS OF THE USE OF SAMBA WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, SAMBA MAY MODIFY, SUSPEND, OR DISCONTINUE SAMBA (INCLUDING ANY CONTENT PROVIDED THEREBY) OR YOUR USE OF THEM. WHENEVER SAMBA ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE SAMBA, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.

10.3

YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION TO US IS AT YOUR OWN RISK. SAMBA DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

10.4

YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT WHEN USING SAMBA. SAMBA HAS NO LIABILITY TO YOU FOR ANY SUCH CONTENT.

10.5

SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH SAMBA MAY INCLUDE MATERIALS THAT BELONG TO THIRD PARTIES. YOU ACKNOWLEDGE THAT SAMBA ASSUMES NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS OR SERVICES.

11. LIMITATIONS OF LIABILITY

11.1

IN NO EVENT WILL SAMBA BE LIABLE TO YOU FOR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF SAMBA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SAMBA OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

11.2

SAMBA’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF ONE DOLLAR (US $1.00) OR THE TOTAL AMOUNT PAID BY YOU FOR THE APPLICABLE SAMBA SERVICES AT ISSUE.

12. INDEMNITY

YOU WILL INDEMNIFY AND HOLD SAMBA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (I) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (II) YOUR USE OF THE SAMBA SERVICES.

13. GENERAL

13.1

You will be responsible for providing the DSL, cable modem and any other hardware (such as a screen) necessary to use Samba with the Equipment.

13.2

Samba or its partners may present advertisements or promotional materials via Samba. Your dealings with, or participation in promotions of any third-party advertisers via Samba are solely between You and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. You agree that Samba is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via Samba.

13.3

Samba may present links to third-party Web sites or third-party services not owned or operated by Us. We are not responsible for the availability of these third-party sites or services or their contents. You agree that We are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service.

13.4

Samba Services are owned or licensed by Samba or its partners and subsidiaries and are protected by United States and foreign copyright laws and international treaty provisions. You will not sublicense, assign, or transfer the license granted to You under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of this Agreement is void.

13.5

This Agreement will be governed by the laws of the State of California. The exclusive jurisdiction for any claim, action or dispute with Samba or relating in any way to your use of Samba will be in the state and federal courts of the State of California and the venue for the adjudication or disposition of any such claim, action or dispute will be in the County of San Francisco, California.

13.6

Should you have any questions concerning this Agreement or otherwise need technical support, you may contact Samba support by visiting http://samba.tv/support

13.7

Samba may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email, mobile text message, written or hard copy notice, or through conspicuous posting of such notice on Site, as determined by Samba in its sole discretion. Samba reserves the right to determine the form and means of providing notifications to You, provided that You may, in certain instances, opt out of certain means of notification as described in this Agreement.

13.8 Injunctive Relief

You agree that any violation or breach by You of this TOS may result in irreparable harm to Us, that monetary damages will be an inadequate remedy, and You hereby agree that We shall be entitled to seek injunctive relief.

13.9 Severability

If any provision of this TOS is deemed unlawful, void, or for any reason unenforceable, then that provision shall be severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.